September

Lawyers Journal

The scales of justice are broken

By Radha Natarajan

September 2011

In Massachusetts, drug trafficking is defined as possessing a
certain quantity of a controlled substance with the intent to
distribute it.1 The penalties for trafficking are
graduated and depend both on the type and weight of the
substance.2 The weight of the substance is measured by
including the entire mixture that contains the controlled
substance, regardless of the purity of the mixture.3

For example, a person who possesses a mixture of five grams of
cocaine and nine grams of baking power is just as criminally liable
as a person who possesses 14 grams of pure cocaine. While this
method of measurement is logical for most controlled substances, it
is irrational, and arguably unconstitutional, for oxycodone.

Part I: Oxycodone and the Massachusetts Drug
Trafficking Statute

Oxycodone is an analgesic used in the treatment and management
of pain.4 The criminal market for oxycodone is supplied
by the diversion of prescription pain medication created and
manufactured lawfully by pharmaceutical companies.5

Different pharmaceutical companies have developed pills that
contain oxycodone, but there is a large variety among them. Pills
vary in the amounts of oxycodone, active ingredients and inert
substances they contain.6 They vary in their shapes and
sizes, colors and coatings, markings and scorings.7 They
vary in their availability and their popularity. Despite these
differences, however, there is one thing they have in common: All
are classified (and distinguished) by the amount of oxycodone they
contain.

OxyContin was developed and patented by Purdue Pharma in
1996.8 OxyContin can come in strengths of 10, 15, 20,
30, 40, 60, 80 and 160 milligrams of oxycodone.9 In the
"street market," OxyContin is bought and sold by the amount of
oxycodone contained in each tablet.10 The amount of
oxycodone in each tablet of OxyContin is readily apparent as each
tablet has the letters "OC" on one side and the milligrams of
oxycodone inscribed on the other.11

Additionally, the pills have different colors depending on the
amount of oxycodone they contain.12 A dealer, potential
customer or law enforcement official can easily determine the
amount (and corresponding price) of oxycodone in an OxyContin pill
by simply examining one with the naked eye. There are no scales,
chemical tests or other instruments necessary to determine the
amount of oxycodone in an OxyContin pill.

Because of these inert substances, the approximate weight of one
80-milligram OxyContin tablet is 269 milligrams.14
Accordingly, oxycodone comprises only 30 percent of an 80-milligram
OxyContin pill. Neither the weight of a single tablet nor their
aggregate weight is listed anywhere on the tablets themselves, the
pill bottle, prescribing information, patient information or on the
website of the manufacturer, Purdue Pharma.15 In other
words, the total weight of an OxyContin tablet is neither
accessible nor is it useful or relevant in the manufacturing,
prescribing or selling of the product.

Other pills containing oxycodone come in various forms. For
examples, a "Combunox" tablet contains 5 milligrams of oxycodone
and 400 milligrams of ibuprofen.16 Percocets contain a
combination of oxycodone and acetaminophen, one combination having
10 milligrams of oxycodone and 650 milligrams of
acetaminophen.17 Both Combunox and Percocet display the
amount of oxycodone they contain on the tablets
themselves,18 but neither pills' prescribing information
nor patient information contains the total weight of a single
tablet because it is not needed for any purpose.

The statute governing trafficking in
oxycodone19states in relevant part as follows:

Any person who trafficks in … opium or any derivative thereof by
knowingly or intentionally … possessing with intent to … distribute
… a net weight of fourteen grams or more of … opium or any
derivative thereof or a net weight of fourteen grams or more of any
mixture containing … opium or any derivative thereof, shall … be
punished…

The last time the Massachusetts Legislature amended the
substance of the trafficking statute was on Jan. 14,
1993.20OxyContin was not developed until
1996.21 In other words, the Legislature could not have
specifically considered OxyContin when drafting the trafficking
statute because it did not exist. It is also very likely that even
the substance oxycodone was never independently considered. Indeed,
although the Legislature specifically named at least 86 different
opium derivatives when classifying controlled substances, it does
not ever mention oxycodone.22

Part II: Why oxycodone should be measured
differently

A. Proportionality and the Federal Sentencing
Commission

"Determining trafficking weight for oxycodone by calculating the
weight of an entire pill leads to irrationally disproportionate
results. As recognized by the Federal Sentencing Commission, there
are two proportionality problems: one, because different medicines
have different formulations and another because pills with
identical weight can have different amounts of
oxycodone."23

This realization by the Federal Sentencing Commission caused it,
in 2003, to promulgate Amendment 657, which changed the method by
which the Federal Sentencing Guidelines calculated the weight of
oxycodone-based pills for the purpose of trafficking charges.
Instead of calculating the entire mixture, or entire weight, of a
pill containing oxycodone -- as does Massachusetts -- Amendment 657
requires that only the "actual" amount of oxycodone in any given
mixture be counted.

In addition to enacting Amendment 657, the commission took the
additional and remarkable step of applying it retroactively to
persons who had been sentenced under the previous method of
calculating the weight for pills containing
oxycodone.24The commission member who sponsored the
motion to apply the Amendment retroactively noted that it was the
"strongest case for retroactivity he [had] seen as a
commissioner."25 The basis for his motion, he stated,
was "concerns of proportionality, fairness, and
equity."26

As understood by the commission in passing the amendment
unanimously and making it retroactive, it is not rational to use
the weight of the pill to determine trafficking weight where a
bigger size does not represent a greater danger.

Importantly, the weight of an OxyContin pill does not in any way
correlate to the amount of oxycodone contained within it. For
example, a tablet containing 20 mg of oxycodone weighs less than a
tablet containing 15 mg;27 a tablet containing 40 mg of
oxycodone weighs less than a tablet containing 30 mg or 15
mg;28 a tablet containing 60 mg of oxycodone weighs
almost the same as a tablet containing 15 mg;29 and a
tablet containing 80 mg of oxycodone weighs 70 mg more than a
tablet containing 60 mg of oxycodone, even though there is only a
20 mg difference in strength.30 OxyContin is unlike
other drugs, such as heroin and cocaine, for which weight is a
meaningful distinguishing characteristic.

B. The street market for oxycodone

The market for OxyContin is entirely different from the markets
for cocaine and heroin. Cocaine and heroin are both bought and sold
by weight. Thus, a dealer of cocaine or heroin has a market
incentive to dilute their product because more grams of product
lead to more customers and more profit. The criminality of such an
enterprise -- to maximize profit from selling more (albeit diluted)
drugs to others -- is inherent in the penal scheme for cocaine and
heroin, which provides for increasing mandatory punishments for
these substances based on total weight.31

Therefore, as applied to cocaine and heroin, where the markets
revolve around weight and where manipulation of the weight actually
corresponds to increased sales and revenue, the trafficking statute
is rational and serves important governmental interests.

However, the statute's calculation method is illogical with
respect to OxyContin. Not only is tablet weight irrelevant to the
OxyContin market, it is also something that cannot be controlled by
the street dealer. OxyContin pills cannot be diluted to produce
larger quantities of the drug to reach more people. OxyContin
cannot be mixed with a cutting agent in order to cheat customers or
make more profit. OxyContin does not need to be altered to be
digestible. It can be consumed in the exact form in which it was
obtained by the dealer.

In fact, a dealer of OxyContin has a strong incentive to sell
the product exactly as it was manufactured in order to authenticate
its potency. Therefore, the implied reasoning in the trafficking
statute -- to punish people who deal in greater quantities of the
harmful substance by aggregating mixture weight -- is inapposite to
the circumstances of OxyContin.

In the case of OxyContin, calibrating sentences according to
tablet weight is much more difficult to administer than if it were
done by the amount of oxycodone involved. An OxyContin tablet has
its strength inscribed directly on it: A tablet containing 80 mg of
oxycodone will have "80" written plainly on one side.32
Additionally, different strength tablets also have different
colors, allowing them to be easily distinguished.33 A
drug expert could visually examine a tablet and determine, from
training and experience, that it is an 80 mg OxyContin pill.

Tablet weight, on the other hand, is more elusive. Determining
accurate weight for oxycodone requires lab testing, and proving
accurate weight requires testimony from a technician. With limited
lab resources, in conjunction with the fact that tablet weight is
irrelevant to the oxycodone market, it is irrational to use tablet
weight to enforce the trafficking statute with respect to this
drug.34

Part III: Solutions

A. The legislative fix

An amendment to the trafficking statute would be the easiest and
most comprehensive way to address the fact that oxycodone is
currently measured incorrectly in Massachusetts. Section 32E(c)
would first have to include the words "except oxycodone" after the
words "opium or any derivative thereof." Then, 32E(d) could be used
to address trafficking in oxycodone specifically, stating that
"[a]ny person who traffics in oxycodone by knowingly or
intentionally manufacturing, distributing or dispensing or
possessing with intent to manufacture, distribute or dispense or by
bringing into the commonwealth a net weight of 14 grams or more of
oxycodone … shall be punished … ."

Finally, the Legislature would then have to change the current
32(E)(d) to 32(E)(e). No further amendments would be necessary,
though it would be wise for the Legislature to address the
retroactivity question, as did the Federal Sentencing
Commission.

B. Judicial fix

Until the Legislature takes action, however, it is incumbent
upon defense attorneys to file motions to dismiss, motions for
required findings and motions for appropriate jury instructions in
these cases, arguing that the current trafficking statute is
unconstitutional as applied to oxycodone. The manner in which the
controlled substance is measured - by the weight of an entire
pill rather than the amount of oxycodone in the pill - is not
rationally related to the goals of the statute and thereby violates
the defendant's right to substantive due process.35

Additionally, because of the disproportionate results it
creates, the current statute violates a defendant's right to be
free from cruel and/or unusual punishment.36 While it
has not been deemed cruel or unusual to treat narcotics offenses
with special severity, no case in Massachusetts has determined
whether that same severity is still appropriate, and proportionate,
to the situation where the defendant is being held accountable for
more than what she reasonably can control. Street dealers of
OxyContin cannot easily know, do not control and do not benefit
from the weight added by Purdue Pharma. Those are essential
differences between oxycodone and other drugs, such as cocaine,
heroin and even LSD.

Additionally, using the current method of calculation, a person
distributing less then 14 grams of actual oxycodone can be punished
more harshly than a distributor of 14 grams of heroin or 28 grams
of cocaine and is punished more harshly than someone prosecuted
under federal law for the same crime. Therefore, as applied to
oxycodone, the statute establishes a punishment scheme that is
disproportionately cruel and unusual.

Conclusion

When drafting the trafficking statute, the Massachusetts
Legislature never had the opportunity to consider the specifics of
oxycodone. If it had, it would likely have reached the same
conclusion as the Federal Sentencing Commission - that the
only rational method of punishing offenses involving drugs that
contain oxycodone is by calculating the amount of oxycodone present
rather than the entire weight of the pills. The Legislature and the
courts now have the opportunity to change the way oxycodone is
measured. Such a change would finally balance the scales of
justice.

Radha Natarajan has been a public defender with the
Committee for Public Counsel Services for the last eight years. She
has presented at numerous continuing legal education panels and
received the MBA's 2011 Access to Justice Defender Award. She is an
instructor at Boston University Law School's First Year Writing
Program.

20The history of M.G.L. c. 94C, § 32E, indicates that
the last substantive amendment was made during the 1992 Legislative
Session, though it was not approved until Jan. 14, 1993.
See 1992 Mass. Adv. Leg. Service 396, §§ 1-3. The
Legislature did amend the statute with respect to parole
eligibility for certain offenses in 2010.

31See, e.g.,United States v.
Berroa-Medrano, 303 F.3d 277, 284 (3rd Cir. 2002) ("[C]ommon
cutting agents such as procaine and lidocaine are added to heroin
specifically to facilitate its use by addicts - thereby
improving its ingestibility - and to increase its
profitability for dealers and distributors - thereby enhancing
its marketability.").

OxyContin, supra note 6, at 27-28.

32Id.

34This is very different from the enforcement of
other drugs, where aggregate weight makes administration easier,
not more difficult. See, e.g., Chapman v. United States,
500 U.S. 453, 466-68 (1991) (finding that determining trafficking
weight for LSD by aggregating the weight of the pure LSD with its
carrier medium (e.g. blotter paper) was reasonable because of the
nature of LSD and the fact that a typical dose weighed only 0.05 mg
and that weighing it separately would require the extraction of an
"infinitesimal" amount from a carrier medium).